Search

LRH-2022-165

Huntington District
Published Dec. 4, 2023
Expiration date: 1/3/2024

TO WHOM IT MAY CONCERN:  The following application has been submitted for a Department of the Army (DA) Permit under the provisions of Section 404 of the Clean Water Act (CWA). 

APPLICANT:  The Ohio Department of Transportation (ODOT)

1980 West Broad Street, Mail Stop 4170
Columbus, Ohio 43223

LOCATION:  As depicted on attached Sheet 1 of 35, the proposed project would construct the west half of the Chesapeake Bypass project (Phase 2) from the State Route (SR) 527/SR-7 Interchange in the Village of Chesapeake, Lawrence County, Ohio east to the previously completed Phase 1 portion of the project at SR-775 in the Village of Proctorville, Lawrence County, Ohio.  The proposed project has center coordinates of approximately 38.4576 North Latitude, 82.4156 West Longitude.

DESCRIPTION OF PROPOSED WORK:  The overall project would construct approximately 6.1 miles of a new two-lane, and a short four-lane section, of roadway, on a new alignment along with necessary bridges and ancillary features.  Construction activities would begin with tree clearing, grading, and drainage installation followed by roadway and bridge construction.  To complete construction of the proposed project, the applicant is requesting DA authorization for the permanent discharge of dredged and/or fill material into 19,387 linear feet (2.38 acres) of 40 streams, and 5.5 acres of 18 wetlands.  The applicant also proposes the temporary discharge of dredged and/or fill material into 2,893 linear feet (0.89 acre) of 36 streams for construction access.  Proposed permanent and temporary discharges of dredged and/or fill material are described in the attached Tables D and E.  Construction plan sheets of the proposal are also attached to this notice.

ALTERNATIVES ANALYSIS:  As noted above, a total of 19,387 linear feet (2.38 acres) of 40 streams and 5.50 acres of 18 wetlands would be permanently filled as a result of the proposal.  The project does not require access or proximity to or siting within wetlands to fulfill its basic purpose and is considered a non-water dependent activity.  The CWA Section 404(b)(1) Guidelines state for non-water dependent activities, practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise.  The applicant is required to provide an alternatives analysis that must overcome this presumption prior to receiving authorization for the discharge of dredged and/or fill material.  The applicant has submitted an alternatives analysis for review.  The applicant has completed multiple iterations of alternatives analyses over the 20-year history of this project.  The applicant completed an analysis of five (5) different alternatives that could potentially meet the project purpose and need.  The applicant has indicated Corridor B as described above is the preferred alternative.  The applicant’s alternatives analysis is currently under review.  A complete copy of the applicant’s submittal can be reviewed, or a copy may be requested under the Freedom of Information Act.  No permit will be issued until our office determines practicable upland alternatives are not available to achieve the overall project purpose based upon the applicant’s alternative analysis.

AVOIDANCE AND MINIMIZATION:  In evaluating a project area containing waters of the United States (U.S.), consideration must be given to avoiding impacts on these sites.  If waters of the U.S. cannot be avoided, then the impacts must be minimized.  Approximately 25,094 linear feet of stream and 11.22 acres of wetland are located within the project’s survey area.  According to the applicant, on-site alternatives were considered, and avoidance and minimization efforts were incorporated into the project design.  The project has been designed to completely avoid the discharge of dredged and/or fill material into 5,707 linear feet of streams and 5.72 acres of wetlands.  The applicant has indicated that the proposed discharge of dredged and/or fill material into waters of the U.S. are unavoidable and that no dredged and/or fill material would be discharged in excess of the minimum needed to complete the project.  Minimization of adverse effects to aquatic resources would also be achieved through adherence to the applicant’s Construction and Material Specifications and the implementation of construction Best Management Practices for sediment and erosion control. All disturbed areas would be seeded and/or revegetated with native plant species and native seed mixes after completion of construction activities.

COMPENSATORY MITIGATION PLAN:  To compensate for the permanent discharge of dredged and/or fill material into 19,387 linear feet (2.38 acres) of stream, the applicant proposes to provide 36,993 linear feet of stream mitigation credits through a combination of In-Lieu Fee credits and permittee responsible mitigation (PRM).  To compensate for the permanent discharge of fill material into 5.50 acres of wetland, the applicant proposes to provide 10.86 wetland restoration credits through a combination of In-Lieu Fee credits and PRM. After review of all the submitted information, the Corps will make a determination of the appropriate compensatory mitigation in the event a decision is made to issue a DA authorization.

WATER QUALITY CERTIFICATION:  The applicant must obtain a Section 401 Water Quality Certification (WQC) from the Ohio Environmental Protection Agency (OEPA) assuring that applicable laws and regulations pertaining to water quality are not violated.  A DA permit, if otherwise warranted, would not be issued on this project until the Section 401 WQC has been issued or waived and the Section 401(a)(2) process has been completed with the U.S. Environmental Protection Agency (USEPA).   In accordance with 40 CFR § 121.5(a), the Corps submitted a Section 401 WQC notification to the OEPA on October 30, 2023.  The October 30, 2023, Section 401 WQC notification shall serve as the OEPA’s request to act on the Section 401 WQC for the subject DA permit application.  The reasonable period for the OEPA to respond ends on July 26, 2024 (270 days).  A DA permit, if otherwise warranted, would not be issued on this project until the Section 401 WQC has been issued or waived.  A waiver may be explicit or will be deemed to occur if the OEPA fails or refuses to act on a request for certification within one (1) year, as extended, after receipt of a valid certification request. 

HISTORIC AND CULTURAL RESOURCES:  Pursuant to 23 U.S.C. 327(a)(2)(B) and a Memorandum of Understanding (MOU) executed on December 14, 2020, between the Federal Highway Administration (FHWA) and the ODOT, the FHWA assigned, and the ODOT assumed, responsibility for compliance with Section 106 of the National Historic Preservation Act (NHPA).  The National Register of Historic Places (NRHP) has been consulted and it has been determined there are no properties currently listed on the NRHP that would be indirectly or directly affected by the proposed work.  Based on previous cultural resources surveys, the applicant determined “no historic property affected” is the appropriate finding and the project is not part of a larger undertaking.  In support of our independent permit decision, the Corps intends to rely upon the information collected by the ODOT regarding the effects to historic properties.  This Public Notice serves as coordination with the Ohio State Historic Preservation Office and Tribal Nations, pursuant to Section 106 of the National Historic Preservation Act of 1966.  No DA permit will be issued until all obligations under Section 106 of the NHPA have been fulfilled. 

THREATENED AND ENDANGERED SPECIES:  Pursuant to 23 U.S.C. 327(a)(2)(B) and a MOU executed on December 14, 2020, between the FHWA and the ODOT, the FHWA assigned, and the ODOT assumed, responsibility for compliance with Section 7 of the Endangered Species Act (ESA).  The proposed project area is located within the known or historic range of the following endangered (E), threatened (T) species, including those proposed for listing:

  • Northern long-eared bat (Myotis septentrionalis), (E)
  • Indiana bat (Myotis sodalis), (E)
  • Tri-colored bat (Perimyotis sublavus), (Proposed E)
  • Fanshell mussel (Cyprogenia stegaria) (E)
  • Sheepnose mussel (Plethobasus cyphyus) (E)
  • Snuffbox mussel (Epioblasma triquetra) (E)
  • Pink mucket pearly mussel (Lampsilis abrupta) (E)
  • Round hickorynut mussel (Obovaria subrotunda) (T)
  • Longsolid mussel (Fusconaia subrotunda) (T)

Indiana, northern long-eared, and tri-colored bats

Approximately 265 acres of suitable wooded habitat for these species are located within the study area and would be removed.  The ODOT determined the proposed project may affect and is likely to adversely affect the northern long-eared bat, the Indiana bat, and the tri-colored bat.  On September 27, 2023, the ODOT requested initiation of formal section 7 consultation and conference under the ESA.

Round hickorynut mussel

This species was encountered in Symmes Creek during a mussel presence/absence survey conducted in 2012.  A second presence/absence survey was conducted in 2021.  During that survey, the round hickorynut mussel was not encountered.  Therefore, the ODOT determined the proposed project may affect, but is not likely to adversely affect the round hickorynut mussel.  By email dated October 15, 2021, the USFWS concurred with ODOT’s determination of may affect, not likely to adversely affect the round hickorynut mussel, provided ODOT relocate mussels prior to construction.

Fanshell, Longsolid, Sheepnose, Snuffbox, and Pink mucket pearly mussels

The applicant made no effect determinations for the fanshell, longsolid, sheepnose, snuffbox, and pink mucket pearly mussels.

In support of our independent permit decision, the Corps intends to rely upon the information collected by the ODOT, and consultation performed by the ODOT, regarding the effects to threatened, endangered, or proposed for listing species.  This Public Notice serves as a request to the USFWS for any additional information they may have on whether any listed or proposed to be listed endangered or threatened species may be present in the area which would be affected by the activity, pursuant to Section 7(c) of the ESA of 1972 (as amended).

PUBLIC INTEREST REVIEW AND CUMULATIVE EFFECTS:  This application will be reviewed in accordance with 33 CFR Parts 320‑332, the Regulatory Program of the Corps, and other pertinent laws, regulations, and executive orders.  Our evaluation will also follow the guidelines published by the U.S. Environmental Protection Agency pursuant to Section 404(b)(1) of the CWA (40 CFR Part 230).  The decision to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts of the proposed activity, on the public interest.  That decision will reflect the national concern for both protection and utilization of important resources.  The benefit which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments.  All factors that may be relevant to the proposal will be considered including the cumulative effects thereof; among those factors are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.  A permit will be granted unless its issuance is found to be contrary to the public interest.

SOLICITATION OF COMMENTS:  The Corps is soliciting comments from the public, federal, state and local agencies and officials, Indian Tribes and other interested parties in order to consider and evaluate the impacts of this proposed activity.  For accuracy and completeness of the administrative record, all data in support of or in opposition to the proposed work should be submitted in writing setting forth sufficient detail to furnish a clear understanding of the reasons for support or opposition.  Any person may request, in writing, within the comment period specified in the notice, that a public hearing be held to consider the application.  Requests for public hearings shall state, with particularity, the reasons for holding a public hearing.  Any comments received will be considered by the Corps to determine whether to issue, modify, condition or deny a permit for this proposal.  To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above.  The comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act.  The comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.  Written statements received in this office on or before the expiration date of this Public Notice will become a part of the record and will be considered in the final determination. 

CLOSE OF COMMENT PERIOD:   All comments pertaining to this Public Notice must reach this office on or before the close of the comment period listed on page one (1) of this Public Notice.  Comments, information requests, and any public hearing requests should be submitted in accordance with the submission methods listed below.  If no comments are received by the close of the comment period, it will be considered that there are no objections.

COMMENT SUBMISSION:  Comments and requests for additional information should be submitted electronically to Peter Clingan by email at peter.m.clingan@usace.army.mil.

If you do not have internet access, comments may be submitted through the U.S. Postal Service (USPS) to the following address:

U.S. Army Corps of Engineers, Huntington District

ATTN: CELRH-RDS Public Notice No. LRH-2022-00165-OHR

Building 10 / Section 10

PO Box 3990

Columbus, Ohio 43218-3990

 

Copies should only be provided through the USPS when electronic transmission is not possible.  Precautionary internal mail handling procedures may be instituted to protect our workforce, which may result in longer than normal times to process and receive hard copy submissions.  To be considered in our evaluation, comments submitted through the USPS should have a postmark dated on, or prior to, the close of the comment period listed on this Public Notice.

Please note names and addresses of those who submit comments in response to this Public Notice become part of our administrative record and, as such, may be available to the public under provisions of the Freedom of Information Act.  Thank you for your interest in our nation’s water resources.  If you have any questions concerning this Public Notice, please contact Peter Clingan of the South/Transportation Branch, at (614) 570-2701, or by email at peter.m.clingan@usace.army.mil.